Facts: Maloney was arrested at the border
and indicted for smuggling marijuana hidden in the cab of a tractor-trailer. Id. at *1. Defense counsel argued in
closing that Maloney was set up, explaining that “Hernandez” had hidden the pot
in the truck without the defendant’s knowledge. Id. at *8. In rebuttal, the government argued that the defense
theory was not credible because Hernandez had done things inconsistent with secretly
planting drugs, contended that the timing of the defense version of events was not
consistent, and argued that the lack of luggage recovered undercut Maloney’s
testimony that he had planned to travel for three days on a legitimate trucking
haul. Id. at *11. The defense moved
for surrebuttal, arguing that these were new factual theories that were not
first made in the government’s closing argument. Id. The district court denied the defense request for surrebuttal; Maloney
was convicted. Id.

Issue(s): “Maloney appeals his conviction by
arguing that . . . the prosecution raised new arguments in rebuttal and the
district court committed reversible error by refusing his request for
surrebuttal based on those new arguments.” Id.
at *2.

Held:“The
district court did not abuse its discretion in denying the defense surrebuttal
summation, because the prosecution's statements in rebuttal summation addressed
the arguments made in defense counsel's closing argument and were based on
permissible inferences from the record. The prosecution only strays from the
proper bounds of rebuttal summation when it impermissibly raises new arguments
in rebuttal summation . . . The prosecution impermissibly raises new arguments
beyond the proper scope of rebuttal summation when the door has not been opened
by defense counsel's summation or when the prosecution's arguments are not based
on reasonable inferences from the record.” Id.
at *1 (internal citations and quotations omitted). “[D]efense counsel opened
the door to that information being presented in the prosecutions rebuttal
summation by basing its argument on the proposition that the Government had not
cast doubt on Maloney’s credibility and had not shown him to be a liar.” Id. at *12.

Of Note: The holding in Maloney ends with this maxim imported
(and expanded) from the Eighth Circuit: “The specific content of the prosecution’s
arguments are red herrings. Defense counsel opens the door to topics or issues,
not specific facts.” Id. This is
troubling indeed, and permits prosecutors to sandbag the defense with arguments
sprung for the first time on rebuttal. Case in point: in Maloney the AUSA admitted he had intentionally sandbagged by saving
factual arguments for rebuttal.

“En banc petition” should be penned at the
top of this compelling dissent.

How to
Use: To stave off sharp dissent barbs,
Judge N.R. Smith devotes a fair amount of effort of tying this holding to specific
facts in the case. Id. at *15. If
battling Maloney when sandbagged in
closing, hit those limiting facts hard – some defense concessions in the
opinion may make it distinguishable from your case.

For
Further Reading: Sr. Judge Gilman is a Clinton
appointee. See article here. Maloney isn’t his first great
dissent: he wrote a beautiful dissenting opinion in ACLU v. NSA, where he explained why the Bush administration’s warrantless
wiretapping of American citizens was unlawful. See opinion here.

Here’s
hoping the Hon. Gilman visits the West again, and soon.

Image of
the Honorable Ronald Gilman from http://www.ourcampaigns.com/CandidateDetail.html?CandidateID=119837

The case was reheard en banc. The oral arguments were so decimating to the government's position that the government later moved the Court to GVR. The oral argument in front of the en banc Court should definitely be listened to.

The case was reheard en banc. The oral arguments were so decimating to the government's position that the government later moved the Court to GVR. The oral argument in front of the en banc Court should definitely be listened to.